This thesis analyses the extent to which EU private international law (PIL), namely the
Brussels I and Rome I Regulations, provides a fair regime for EU-based small
businesses engaging in cross-border contracts. Unlike consumers, small businesses are
not afforded special protective rules under these EU Regulations, although they can be
in a weak bargaining position very similar to that of ordinary consumers. Indeed, the
general rules of EU PIL do not take into consideration the position of small businesses
as weaker parties. By the law's failure to protect small businesses' interests, a real
problem of unfairness arises. The analysis focuses on the unfair effects of jurisdiction
and choice-of-law clauses in business-to-business (B2B) contracts. The thesis argues
that these clauses can, inter alia, have the effect of undermining or defeating the right of
access to justice of the weaker party (the small business).
This thesis highlights some of the problems associated with upholding jurisdiction and
choice-of-law clauses in contracts between small businesses and large corporations.
Several options for addressing these problems have been suggested. However, these
suggestions often clash with the principle of party autonomy, a widely recognised
principle in international trade and PIL, and, as a result, are hard to implement in
practice. Therefore, this thesis suggests that a minimum harmonisation in an EU
directive for the protection of small businesses against unfair terms in standard-form
contracts (i.e. abusive party autonomy) is necessary. Such an instrument would be
imp0l1ant not only for promoting small businesses' access to justice but also for
enhancing competition by increasing small businesses' confidence to participate in
cross-border contracts.